1. One Dakahinamurthi Mudaliar was entitled to certain moneys in this Court under decree in Suit No. 45 of 1889. By an order in that suit, dated the 37th March 1893, certain moneys amounting to Rs. 4,056-12-3 were directed to be transferred by the Registrar to the Accountant-General for investment. These moneys represented certain jewels which were found to be part of the inheritance of Dakshinamurthi Mudaliar and not to have passed under the will of his father. At the date of the decree Dakshinamurthi Mudaliar was a minor, but having attained his majority he applied, in February 1904, for payment out of the funds in Court; and it appears from Exhibits H and H-l, the certificate of funds issued by the Accountant-General that his application was confined to the moneys specified in that certificate. Owing to some mistake on the part of the legal advisers of the plaintiff in that suit, the moneys in the hands of the Registrar of the Court were not transferred to the Accountant-General in pursuance of the order of the 27th March 1893 and were lost sight of when the application was made by the plaintiff for payment out to him. This is clearly stated by the present first defendant in an affidavit filed by him in that suit on the 8th of August 1914 (Exhibit C). In paragraphs he abates: 'It appears that the said sum of Rs. 4,056-12-3 which appears to have remained in the hands of the Registrar of this Honourable Court was not known to exist and was consequently overlooked and I have now come to know that the said sum of Rs. 4,056-12-3 is standing to the credit of this suit.' The amount was accordingly paid out of Court to the first defendant who claimed it as the executor of the will of Dakshinamurthi Mudaliar.
2. This will is dated the 5th December 1905 and the testator died in the same month. The first defendant was appointed executor of the will and has been administering the estate of the deceased, and this suit is brought by the widow of the deceased, on behalf of herself and the other legatees under the will, for an account of the administration of the estate, and for its administration under the orders of the Court. The question has arisen as be whether this sum of Rs. 4,000 and odd passed to the residuary legates under the will. The will follows the form, which is very well known in this Court, of first stating the property which the testator intends to dispose of and then dividing it up amongst the various beneficiaries. Clause No. 2 of the will reads as follows: 'The house No. 25 in Nattu Pillayar Civil Street and ready money were received (by me) under an order of the High Court according to my adoptive father's will. Of the amount left after deducting the sum spent therefrom, not only is a certain portion lodged in fixed deposit in Arbuthnot's House in my name and in the name of my senior elder brother P.N.K. Suryaprakasaroya Mudaliar but the remaining sum is in shape of secured and unsecured debts and ready money.' The testator then proceeds to give various specific and pecuniary legacies, and in Clause 13 he says: 'The sum which may be left after deducting the abovementioned legacies and such other expenses shall be utilised in my name without defect for pooja once, that is, daily, and repairs and other charities for the temple of Sri Vaideswarar in Poonamallee.' Having regard to the fact that the existence of this sum of Rs. 4,000 and odd was unknown to the testator at the time, and to the statement made by him that he is dealing with a particular house and the moneys which had been already received by him from the High Court, I think that the words in Clause 13 refer to the residue of the moneys in his hands which have not been already disposed of by him under the will, and that the sum of Rs. 4,000 and odd is not disposed of by him. I may point out that the residuary clause in the form in which it appears in English wills is practically unknown to the ordinary testator in Madras and that the rules of construction which have been laid down by English Courts are not applicable,
3. The defendant has also pleaded a release by the plaintiff of all claims against him, hub it is clear from the evidence that this document was executed by the plaintiff when she was a minor. It is also perfectly clear that it was executed under a mutual mistake and for that reason also it is not binding on the plaintiff.
4. The plaintiff has called for and put in a book purporting to be an account of the first defendant of his administration of the estate. It is not in his affidavit of documents and I think it is obviously a fraudulent concoction. Certain entries which appear in it have been proved, by the evidence called by the plaintiff, to be untrue.
5. There will, therefore, be a decree declaring that the sum of Rs. 4,056-12-3 did not pass under the will of the deceased but will go to the plaintiff as on an intestacy, that the estate must he administered by the Court and that the first defendant must account from the date of the death of the deceased on the footing of wilful default. The first defendant will pay the costs of the suit up to date. The first defendant is ordered to pay this sum of Rs. 4,056-12-3 into Court within ten days.
6. Messrs. Branson and Branson, Attorneys for the first defendant.